Kohler v. Jackson County

Intervenor applied for a forest template dwelling in the Area of Special Concern (ASC) 90-1 overlay zone. Under Jackson County Land Development Ordinance (LDO) 7.1.1(C)(5)(c), dwellings in the ASC 90-1 overlay must be located within 300 feet of an existing road or driveway. The proposed dwelling was accessible via an easement, but it was not within 300 feet of an existing road or driveway. Thus, the hearings officer concluded that it did not satisfy LDO 7.1.1(C)(5)(c). However, because 7.1.1(C)(5)(c), read literally, would in some cases make it impossible to establish a dwelling in an area with an easement but no road or driveway, the hearings officer proceeded to apply LDO 7.1.1(C)(4). Under LDO 7.1.1(C)(4), dwellings in the ASC 90-1 overlay must be located within 300 feet of an existing road, driveway, or an “other developed access way.” Concluding that the easement providing access to the proposed dwelling was an “other developed access way,” the hearings officer concluded that the application satisfied LDO 7.1.1(C)(4) and approved it.

On appeal, LUBA agreed with petitioner that the text of LDO 7.1.1(C)(4) indicates that it applies only to Type 1 permits, which LDO 3.1.2 defines as requiring only “non-discretionary” staff review. By contrast, LDO 7.1.1(C)(5) expressly applies only to “discretionary land use permits,” which include Type 2 permits. Under LDO 3.1.3, forest template dwellings are subject to Type 2 review. LUBA therefore agreed with petitioner that the hearings officer erred in approving the proposed dwelling under LDO 7.1.1(C)(4). Although LDO 7.1.1(C)(5) would in some cases make it impossible to establish a dwelling in some areas, there is no absolute right to develop a forest template dwelling. Because applications that do not comply with LDO 7.1.1(C)(4) or (5) may still be approved under LDO 7.1.1(C)(6), the county’s decision was REMANDED.